Sometimes we write on issues for peculiar reasons.  Today, for example, a case on a certain topic caught our eye because of its catchy name:  Clark v. Perfect Bar.  So many questions arise from this concise, yet provocative tag.  Did the owner of the 100-year-old brand Clark Bar get sideways with a modern upstart claiming to make the “perfect” bar.  Is Perfect Bar the name of a watering hole with an astounding selection of single malt Scotch, and if so, where might we find this “perfect bar”?  Did the case relate in any way to the post we wrote more than six years ago on granola bars, energy bars, fruit bars, protein bars, fiber bars, nut bars, candy bars, and “meal replacement” bars?

If you read Clark v. Perfect Bar and thought “food,” you are on the right track, and so is the recent Ninth Circuit opinion holding that federal food labeling laws preempt Mr. Clark’s claims against the maker of protein bars.  See Clark v. Perfect Bar, LLC, No. 19-15042, 2020 WL 4596823 (9th Cir. Aug. 11, 2020).  The plaintiffs filed a class action alleging that the bars’ labeling led them to believe the bars were “healthy,” when in fact the bars were “unhealthy” because of added sugar.  Id. at *1.  You start to get the picture.  This is another food class action brought under California’s permissive consumer statutes alleging that misleading labeling duped the plaintiffs (and others) into purchasing food that they otherwise would not have purchased.

There are usually two problems with these kinds of all-too-common lawsuits.  First, federal law requires uniform nutritional disclosures for food on its labeling, which makes it difficult for plaintiffs to prove that they have standing to sue or that food labeling is misleading in any material way.  The labeling for the protein bar at issue surely disclosed its ingredients and nutritional information, including the peanut butter flavor bar with its 19 grams of sugar—clearly disclosed right there on the label.

Second, federal statutes mandating uniform nutritional labeling can and should preempt attempts to regulate food labeling through state-law litigation.  The Nutritional Labeling and Education Act (“NLEA”) includes an express preemption provision under which the NLEA preempts all state claims that “directly or indirectly establish any requirement for the labeling of food that is not identical to the federal requirements.”  Clark, at *1.  This is a particularly strong express preemption clause:  Not only does it preempt any state-law requirement that is “not identical to” federal requirements, but it does so whether the state-law requirement is established “directly or indirectly.”

In Clark, the plaintiffs cleared the first hurdle, but the bar was low under California’s statutes.  They met the standing requirement merely by alleging that the label was misleading and that they “would not have bought the product but for the misrepresentation.”  Id.

The case faltered on preemption.  The plaintiffs based their claims on the allegation that the product labeling made an improper health claim because of added sugar.  However, the NLEA and its accompanying regulations say nothing about health claims based on sugar, i.e., they “are silent on whether sugar levels preclude a product from making health claims.”  Id.  As a result, “allowing a claim based on misleading sugar level content would ‘indirectly establish’ a sugar labeling requirement ‘that is not identical to the federal requirements.’”  Id.  Dismissal affirmed.

We are aware that express preemption rarely applies in the prescription drug context.  We are also aware that the express preemption provision that applies to many medical devices is worded slightly different (“different from or in addition to” federal requirements) and is also subject to the unsupportable and poorly understood “parallel claim” exception.  Regardless, this is another case that highlights the incongruence of regulating drug and device warnings simultaneously through FDA regulation on the one hand and through civil litigation on the other.  We have long favored a high regulation/low litigation regime that provides for greater consistency and predictability, and Clark is a good example.

By the way, we wondered whether Clark Bars still exist, and we were surprised to learn that they were reintroduced to market earlier this year after a two-year hiatus.  Good news for fans of delicious peanut butter and chocolate crunchiness.  You can review the ingredients and nutritional facts here.